Birmingham City Council v M (A Child Acting By Her Guardian)

An interim secure accommodation order cannot be made independently of an adjournment. Under section 25(5) of the Children Act 1989, the court must first decide whether to determine the application or adjourn it.

An adjournment may be justified by the need for further information or procedural fairness. It must last no longer than necessary. The children’s guardian assists the court with the issues raised by the application. The proceedings must not be prolonged merely to retain the guardian or solicitor to support the child or oversee the local authority’s care plan.

A local authority appealed against a decision by the justices to make a three-month interim secure accommodation order. The criteria for secure accommodation were accepted, as was the need for an order lasting three months. The justices nevertheless adjourned the application and made an interim order so that the children’s guardian and solicitor would remain involved while the care plan was implemented.

The appeal concerned whether an interim order was legally available in those circumstances, whether the hearing should have been adjourned, and the proper role of the children’s guardian in secure accommodation proceedings.

1. The appeal was allowed. A free-standing application for an interim secure accommodation order is unavailable. The power under section 25(5) of the Children Act 1989 arises only when the court adjourns the hearing of the local authority’s application.

2. The court must therefore first decide whether to determine the application or adjourn it. Relevant considerations include whether it has sufficient information to decide whether the statutory criteria are met and, if so, the duration of the order, and whether it would be procedurally fair to proceed.

3. Where the court has the necessary information and proceeding would be fair, there is ordinarily no proper basis for adjournment. If an adjournment is justified, it must be for the minimum period necessary to obtain the missing information or secure procedural fairness.

4. The children’s guardian’s function is to assist the court with the issues raised by the secure accommodation application. The guardian does not have a free-standing welfare role and is not responsible for overseeing the local authority’s performance of its statutory duties. It is impermissible to prolong the proceedings merely to keep the guardian or solicitor involved in supporting the child or monitoring the care plan.

5. The guardian’s lack of knowledge of the application justified a short adjournment, potentially of up to four weeks, so that she could perform her statutory duties and report to the court. It did not justify a three-month adjournment. The justices’ order was set aside and replaced by a final secure accommodation order for three months from 20 December 2007.

• High Court (Family Division): Allowed the local authority’s appeal from the justices’ decision and substituted a final three-month secure accommodation order running from 20 December 2007.